Carden v Vallelonga - [2019] WASC 191

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   CARDEN -v- VALLELONGA [2019] WASC 191
CORAM:   QUINLAN CJ
HEARD:   ON THE PAPERS
DELIVERED          :   6 JUNE 2019
FILE NO/S:   GDA 11 of 2018
BETWEEN:   CILLA CARDEN
Appellant
AND
CARMEL VALLELONGA
First Respondent
TOAN VU
Second Respondent
THE OWNERS OF 18 ROCHFORD WAY GIRRAWHEEN STRATA PLAN 52391
Third Respondent

Catchwords:

Application for leave to appeal - Appeal against State Administrative Tribunal - Strata titles - Dispute resolution orders - Interests of justice - Relevance of impacts on other litigants

Legislation:

State Administrative Tribunal Act 2004 (WA)
Strata Titles Act 1985 (WA)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

Solicitors:

Appellant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

Case(s) referred to in decision(s):

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
SH v Chief Executive Officer of Department of Communities [2009] WASCA 31

QUINLAN CJ:

This is an application for leave to appeal a decision of the State Administrative Tribunal (the Tribunal) made on 25 July 2018.
It is one of a number of proceedings in relation to ongoing disputes between the owners of the residences at 18 Rochford Way, Girrawheen. Ms Carden is the owner of Unit 18C, Ms Vallelonga is the owner of Unit 18A and Mr Vu is the owner of Unit 18B.
On 7 January 2019, I made orders that the parties file submissions as to whether leave to appeal should be given under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) and ordered that the question of whether leave to appeal should be given be determined on the papers, without the need for the parties to attend at the hearing.
The proposed appeal relates to an application to the Tribunal by the third respondent (the Strata Company) dated 28 May 2018, seeking orders pursuant to s 83 and s 84 of the Strata Titles Act 1985 (WA) against Ms Carden (the SAT Application). The SAT application was allocated Tribunal number CC1078 of 2018
The orders sought in the SAT application were as follows:
1.There are two unauthorized withdrawals made by the respondent from the Strata Company bank account from the 02/05/2016 of $91.50 and the 10/05/2016 of $68.42. The respondent needs to redeposit the two amounts back into the Strata Company bank account and provide an explanation as to why the amounts were withdrawn without the knowledge or approval of the Strata Company and provide receipts for the two above amounts.
2.The respondent to inform P&N Bank in writing to have the previous owner of Unit 18B removed from the Strata bank account.
3.The respondent to sign the relevant bank document to have Toan Vu (current owner of Unit 18B) added to the Strata bank account.
4.The respondent to sign the relevant bank document to have three signatories on the Strata bank account with any two owners to sign for any withdrawals.
5.The respondent to attend to an overgrown tree, which has caused a blockage in the gutters and down pipe between Units B and C and to trim bushes which interfere with Unit B.
6.The respondent to remove or redirect flood lights and a traffic mirror which are on the inside of the respondents fence line at Unit C but are deliberately directed towards the back yard of Unit B.
The SAT application was made pursuant to s 83 of the Strata Titles Act1985 (WA), which provides that the Tribunal may, on the application of a proprietor of a lot under a scheme:
make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme …
The by-laws (which, subject to a power of amendment, are contained in Schedule 1 and 2 of the Strata Titles Act) relevantly include a duty on a proprietor or resident that they 'not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier'.[1]
[1] Strata Titles Act 1985 (WA) Schedule 1, cl 1(2)(b).
The proceedings were heard by Member Leslie on 23 July 2018. Ms Carden, Ms Vallelonga and Mr Vu were all sworn and participated in the hearing.
As can be seen from the orders sought in the SAT application, there were, in essence, four issues to be determined by the Tribunal:
(a)whether Ms Carden should reimburse to the Strata Company bank account the sum of $159.92, reflecting two withdrawals she made without the approval of the Strata Company;
(b)whether Ms Carden should execute the necessary documentation with the P&N Bank to remove the previous owner of Unit 18B from the Strata Company account and to add Mr Vu to the account;
(c)whether Ms Carden should attend to an overgrown tree; and
(d)whether Ms Carden should remove or redirect flood lights and a traffic mirror that were directed towards the back of Unit B.
On 25 July 2018, Member Leslie allowed the application in part. The orders made by Member Leslie were:
1.Within 14 days, the Respondent is to remove the circular traffic mirror attached to the outside of the rear wall of her unit adjacent to the dividing fence between her unit and unit 18B.
2.Within 14 days, the Respondent is to remove the spotlights attached to the roof of her garden shed OR to redirect them so that the (sic) neither one of the spotlights is pointed at the rear of unit 18B or across or into the back garden of unit 18B and both are directed onto the Respondent's side of the dividing fence so that, save for minimal ambient or reflected light, the light emanating from the spotlights does not fall beyond the plane of the dividing fence.
3.The Respondent is to refrain from erecting any other light, spotlight or other light emitting device that, save for minimal ambient or reflected light, causes light to be directed beyond the plane of the dividing fence.
4.Within 14 days, the Respondent is to attend the Warwick branch of the P&N Bank to sign such papers as are required by the bank to be signed by her and to do all such other things as need to be done by her to remove the previous owner Debra Little's name from the strata company account, and to provide a current specimen signature for the strata company account which is to operate on the signature of two of the three current owners in line with the resolution of the strata company.
5.Within 28 days, the Respondent is to repay into the strata account the amount of $159.92.
6.The application is otherwise dismissed.
As is apparent from the orders, Member Leslie did not make an order in relation to the tree but otherwise made orders consistent with the application.
At the time of making the orders, Member Leslie delivered reasons for decision.
In the course of her reasons for decision, Member Leslie noted that Ms Carden had sought to raise numerous other complaints in relation to the conduct of the other parties, which she sought to be dealt with at the same time of the SAT application brought by the Strata Company. Those complaints were the subject of other proceedings brought by Ms Carden.
In deciding to determine the SAT Application separately, Member Leslie stated:
It is the tribunal's view that even though the matters might be seen as being connected there is no reason to adjourn the current application listed before the tribunal. It involves specific allegations made by the strata company against the respondent. It is a relatively short matter. It is ready for hearing. The fact that there may be a dispute between the respondent and either or both of the other lot owners involving different allegations that is to be the subject of another complaint in the tribunal is not itself a reason to defer the hearing of the current complaint.
This matter involves very specific issues said to be requiring action by the respondent to do with banking authorities, two past bank withdrawals, one garden maintenance issue that is significant in view of the current weather season, and one issue regarding lights and reflection emanating from the respondent's back garden. Different allegations concerning other by-law breaches by the other lot owners in the circumstances require this separate application under section 83. There is no counter-claim jurisdiction in relation to strata matters.
The Tribunal member's conclusions in this regard were clearly open to her and disclose no error of law.
Member Leslie went on to make findings in relation to the matters raised by the SAT application. Briefly stated, her conclusions were as follows.
First, the funds withdrawn by Ms Carden from the strata account were withdrawn for the purposes of earlier proceedings in the Tribunal including a filing fee and a Landgate invoice. Ms Carden accepted there was no resolution passed by the Strata Company at the time authorising the use of the funds to meet these disbursement expenses. The Tribunal member found that in withdrawing the funds, Ms Carden was acting in good faith and endeavouring to find a mechanism to resolve the disputes between the parties. Nevertheless, Member Leslie concluded that the withdrawal of funds required a formal endorsement and resolution of the Strata Company or express agreement of the owners or a majority of owners, and that in the circumstances the amount should be repaid.
Secondly, Member Leslie concluded that it was common ground that it was necessary to regularise the arrangements in relation to the Strata Company account with the P&N Bank.
Finally, in relation to the lights, having considered the material, the Tribunal member concluded that the use of the spotlights and the mirror by Ms Carden were an unreasonable interference with Mr Vu's peaceful enjoyment of his lot and caused a nuisance. In the Tribunal's view, the use of the lighting and mirror was an unreasonable piece of brinkmanship by Ms Carden in an ongoing dispute about patio lighting.
The proposed appeal before this Court, it would appear, is confined to the orders concerning the lights, mirror and $159.92.
I was advised by Ms Carden, at a directions hearing,[2] that the issues in relation to the P&N Bank account have been attended to.
[2] At which I, unsuccessfully, endeavoured to encourage the parties to reach some resolution of their ongoing disputes.
An appeal to this court against the decision of the Tribunal may only be brought on a question of law and requires the leave of the court.[3]
[3] SAT Act s 105(1).
The power to grant leave is in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice. As the Court of Appeal stated in SH v Chief Executive Officer of Department of Communities:[4]
Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.
[4] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [53].
The Grounds of Appeal and the submissions filed in support of the application for leave are lengthy. I do not propose to set them out in detail.
The issues raised by Ms Carden consist largely of challenges to the findings of fact made by the Tribunal member and behaviour of the other parties, including allegations that they gave false evidence before the Tribunal. Those are not matters of law. They go to questions of fact and the factual conclusions reached by the Tribunal member.
The Grounds of Appeal and submissions also, variously, complain, that Ms Carden was not able to agitate, or lead evidence in relation to, her own complaints concerning Ms Vallelonga and Mr Vu, including that they have lights shining into her property. Whether that is the case, or not, was the subject of other proceedings in the Tribunal and, as I have noted above, Member Leslie gave reasons why it was appropriate to deal with the SAT application separately.
As it was, the Tribunal member found, as a fact, that the spotlights and mirror erected by Ms Carden did cause a nuisance to Mr Vu (and his family) and ordered that they be removed (or redirected). It is hardly an answer to that finding to say, in effect, 'they did it first', and to justify the conduct as a form of 'tit for tat' gesture (as the Tribunal member pithily put it).
For these reasons, in my view, the proposed appeal does not raise a question of law, in relation to which leave to appeal should be granted.
There is an additional reason why, in all of the circumstances, it is not in the interests of justice to grant leave in the present case. As reflected in the above extract from SH v Chief Executive Officer of Department of Communities,[5] the requirement for leave, is intended to service the purpose of a just, but timely and cost-effective resolution of disputes. As in the case of the rules concerning civil litigation discussed by the High Court in Aon Risk Services v ANU,[6] the conduct of litigation such as the present is not merely a matter for the parties but one for the court, having regard to the interests of other litigants.
[5] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [53].
[6] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [93] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
Court resources are finite and limited. Every unmeritorious or trivial application brought before the Court impacts adversely on every other litigant waiting for their disputes to be heard and determined. And thus, with every such application, the delivery of justice, as a whole, suffers. In determining whether it is in the interests of justice that leave be granted against a decision of the Tribunal, these impacts are a relevant consideration.
At the very least, a dispute in relation to $159.92 and the direction of patio lights (and a mirror), that has been sensibly resolved by the Tribunal should not be the subject of any more consideration by this Court than is necessary to conclude that no substantial injustice will be caused by leaving the decision of the Tribunal undisturbed.
Leave to appeal must be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
6 JUNE 2019